In search of a model code provision for complicity and common purpose in Australia

Abstract

The purpose of this article is to identify the 'best practice' statutory provision for complicity and common purpose in Australia. The chosen vehicle is the Criminal Code 1983 (NT) because the Northern Territory Government’s decision to incorporate Chapter 2 of the Criminal Code 1995 (Cth), as Part IIAA of the Criminal Code 1983 (NT), affords a comparison between the new s43BG and the old s8, which contains a subjective focus on foresight and the reversal of the onus of proof. This means that two separate but mutually exclusive provisions operate side by side, depending on whether the particular offence is in Schedule 1 or not. Such a comparison also provides a timely opportunity to contrast both provisions in the Criminal Code 1983 (NT) with the equivalent sections in the Griffith Codes. This article is a defence of the original reverse onus of proof provisions for common purpose contained in ss 8 to 10 of the Criminal Code 1983 (NT), which is justified on public policy grounds as the law is particularly hostile to criminal groups. The contrary arguments, that such a position is an overreach of criminal liability, are clearly addressed.